MacDrrmorr James Grahame Vidgen, claimed as trustees of the Acclimatiza- v Corriz.

MacDrrmorr James Grahame Vidgen, claimed as trustees of the Acclimatiza- v Corriz. - [1913] HCA 27 - HCA 1913 case summary — Zoe

[44]

two new grants - one, dated 17th June 1892, to the Society, com- prising 17 acres 0 roods 28 perches called "the Acclimatization lands," the other to the National Association, comprising the 23 acres 1 rood 324 perches previously leased to them, called "the Exhibition lands." The grant to the Association was subject to an annual rent charge of £750 payable for 20 years, now expired, to the Society. The Act of 1890, see. 3, prescribed that the grant of the Acclimatization lands should be "to the uses upon the trusts and subject to the powers and provisions in and by" the original grants "contained and declared concerning the lands thereby granted." These were, in the original grants and in that of 17th June 1892, to the trustees and their successors to hold to them and their successors, " upon trust for the appropriation thereof to the use and for the grounds of the Acclimatization Society . . . and for no other purpose whatsoever," on condition that the trus- tees for the time being should construct proper drains as required ; reservation to the Crown of all the mines of gold, silver, and coal; reservation of power for the Crown or for the Governor in Council " to resume and take possession of all, or any part of the said land which may be required at any time or times hereafter for any public purpose whatsoever," upon twelve months' notice being given, "and the value of the said land or of so much thereof as shall be so required being paid by the Government to the party entitled thereto, at a valuation fixed by arbitration ;" reservation tothe Crown of power to make through the land public drains or sewers upon notice; declaration that "in every case of arbitra- tion" which should arise under the grant, one arbitrator should be chosen by the Governor in Council and one by the trustees, the two arbitrators to select an umpire, who should determine any disagreement between them ; proviso for forfeiture on breach of condition, reservation &c. by the trustees, with power to re-enter.

[73]

powers, and provides that compehsation shall be made to the person from whom property is taken for the loss that he sustains, it is intended that he shall be compensated to the extent of his loss ; and that his loss shall be tested by what was the value of the thing to him, not by what will be its value to the persons acquiring it. The plaintiff, as rector, could never have parted with those churchyards, and therefore, to him, they were perfectly valueless. The Metropolitan Board, it is true, will be able to apply the land to purposes which will give it an increased value, but that is no loss to the rector. He has lost nothing by the land having been taken, although they may have acquired some- thing which may prove a gain. . . . There can be no reason why the party, in whose hands it was valueless, should be com- pensated in respect of a supposed loss of a value which, in point of fact, never existed." Mellor J. said (2): - "T take it that compensation is to be given only for the loss which a person sus- tains." Lush J. said (3): - "I think it is clear from the language of the Act that the value of the land is to be assessed on the principle of compensation to the owner. The question is not what the persons who take the land will gain by taking it, but what the person from whom it is taken will lose by having it taken from him." . . . "If they" (the Board) "had not taken it, it would have remained as it was. The Act did not intend to put the owner of the land in a better position than he would have been in if the land had not been taken from him." And Hannen J. said (4): - * The reetor was undoubtedly owner of the freehold of these churchyards, but he was the owner of it subject to a restriction, which it was not practically possible for him to remove, and while that restriction lasted it rendered the value of the freehold little or nothing. The Metropolitan Board are empowered by Act of Parliament to purchase the various interests of owners of property, and to make compensation to them for that of which they deprive them. Accordingly, they have to

[101]

use, and so as not to interfere with the use of the land for the main purposes of the trust. The decision turned upon the terms of the grant and of the agreement referred to, in the light of the authorities, which were closely considered, but two Acts of Par- liament were regarded as having an indirect bearing on the case, namely, the New South Wales Public Parks Act of 1854 and the Trustees of Public Lands Act of 1869. These two Statutes, which I need not cite at length, both forbade the alienation, and the later one forbade also the mortgaging, of trust lands such as these, the Act of 1869 making special provision of this kind as to lands granted "upon certain trusts for publie purposes and no other " - words evidently applying to such grants as that held by the Society. That grant however was, as already pointed out, issued under the Acelimatization Society and National ce. Asso- ciation Act of 1890. Then came the Acclimatization Society Act of 1907, of which the material provisions have been set out in the early part of this judgment. Finally, the Public Parks Act and the Trustees of Public Lands Act were both repealed by the Land Act of 1910 (sec. 5 and First Schedule). The Acclimatiza- tion Society Act of 1907 was not repealed. But see. 185 (1) of the recent Land Act prescribes that "notwithstanding anything con- tained in any Act, the trustees of the land granted in trust or the trustees of a reserve shall not have power to sell, transfer, or mortgage any land under their control." Some question may arise hereafter upon this provision, but the Court is not called upon to answer any such question in the present case. Sub-sec. 2 of the same section gives power to trustees to lease the trust lands, or any part of them, with the Minister's approval, for terms not exceeding twenty-one years, subject to the condition (inter alia) that the lessee shall "hold the land so that the same may be used for the public purpose for which it was granted or reserved without undue interruption or obstruction"; and all rents received are to be applied solely for the purposes of the

At a glance

Court

Decision date

Before

Source

Judgment (246 paragraphs)

H.C. or A. where the two findings depart from the right principle without. 1913.

Parties

Cited By (1)